Naked Power and Compromised Logic

“It’s hard to believe, but generations of Americans considered compromise an admirable quality,” David Von Drehle argues as he concludes his analysis. “Now,” he laments, “the word connotes something bad.”

After all, he claims, the Great Compromise and the Missouri Compromise demonstrate prior generations’ long-standing esteem for compromise. He contrasts that with today’s supposedly compromise-hating culture, in which “a leaky gasket has been ‘compromised,’ and cheating spouses are caught in ‘compromising’ positions.”

It’s a nice theory, but total nonsense. The word “compromise” and its derivations have had both good and bad connotations for over 400 years, meaning “expose to risk or censure” as well as “damaged or discredited.” Thomas Jefferson used the word in its negative sense in 1785, and it was hardly new then, considering that Shakespeare had done the same thing almost 200 years earlier.

You have to wonder why Time’s cover story on the Obamacare decision would resort to spurious word history to advance a dubious sociopolitical critique. It’s as if they just make this stuff up as they go along.

Time lavishly praises Roberts for standing “above the viral, toxic cloud of partisan rancor” and establishing himself as “perhaps the healthiest figure, politically speaking, in government.”

Of course, Time’s Von Drehle would scarcely have extolled the brilliance of the resulting “compromise” if the Supreme Court had decided 5-to-4 to strike down the individual mandate or, better yet, the whole statutory mess.

All of which is beside the point. The court’s decision to uphold Obamacare was not a compromise in the first place. It was a total defeat of conservative jurisprudence. For the first time in over two centuries, the Supreme Court permitted the federal government to force citizens to buy a product.

The result is bad enough, but the reasoning is an illogical muddle.

Roberts says, in effect, that the Founding Fathers would roll over in their graves if Congress used the federal commerce power to force citizens to buy a product, and then he says Congress can get to the same place as long as they use the taxing power to do it.

Roberts concedes that “the statute reads more naturally as a command to buy insurance than as a tax” but stretches to uphold the mandate as a tax even though he had to find that Congress did not intend to invoke the taxing power as a prerequisite for the Supreme Court to hear the case under the Anti-Injunction Act.

“It is not our job to protect the people from the consequences of their political choices,” Roberts said.

Nor is it the Supreme Court’s job to make political compromises.

Instead, the justices are supposed to apply “neutral principles” that transcend any immediate result and provide a reasoned analysis derived from the Constitution. When the court fails to decide a constitutional issue in a principled way, it simply functions as a “naked power organ,” as a court watcher famously said.

“Roberts brought the court down squarely on the side of one of the most basic conservative principles of all,” Von Drehle contends, “that big decisions in the U.S. should be made not by judges or bureaucrats but by voters.”

Wrong again. In reality, Roberts’s failure to abide this principle is exactly why his ruling has thoroughly disgusted conservatives.

He rewrote the statute’s penalty as a tax, contrary to the Obama administration’s long-standing characterization of the law, the statutory text, and Roberts’s own conclusion on the question in the first part of his own opinion.

As a result, the federal government could enact an unpopular law without having to call it a tax. Had proponents conceded that it was a tax, the law never would have passed, and Obama would have had to explain to voters why his plan violated his no-new-taxes pledge to families earning less than $250,000.

Moreover, whether judges get to make a “big decision” depends on what the decision involves. The legislature cannot contradict the Constitution.

“No legislative act contrary to the Constitution can be valid,” Hamilton wrote in Federalist No. 78, explaining the basis of judicial review. This was a full year before the states had ratified the Constitution and several years before Chief Justice John Marshall’s famous opinion in Marbury v. Madison, marking the Supreme Court’s first instance of setting aside a federal statute as unconstitutional.

Two centuries later, President Obama warned the Supreme Court justices against taking “an unprecedented extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

In a sense, Obama was correct. That is, if “unprecedented” means “originally conceived before ratification of the Constitution and routinely exercised since 1803” and if “strong majority” means seven representatives in Congress.

But the Founding Fathers had an altogether different notion of judicial review. The Federalist Papers clearly explain why judges can declare laws unconstitutional: “where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former.”

Congress adopted Obamacare. “We the People” adopted the Constitution. The judiciary should have been governed by the latter rather than the former.

Gayle Trotter is legal counsel at Independent Women’s Forum, lawyer, and mother of six who lives in Washington, D.C.

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Independent Women’s Forum’s mission is to improve the lives of Americans by increasing the number of women who value free markets and personal liberty. Sister organization of Independent Women’s Voice.